During the twentieth century, the most influential theories in legal theory and political philosophy focused almost exclusively on the normative orders of modern nation-states (henceforth, “state law”). However, with such a limited purview, contemporary practical philosophy set aside other putative forms of legal phenomena different from state law, which I shall generally call non-state legal phenomena, such as:

-        customary legal orders, the traditional norms and methods of dispute resolution that govern the life of many groups, particularly in the Global South;

-        indigenous law, the norms and institutions of the more than 5,000 indigenous peoples of the world;

-        religious law, institutionalized norms regulating civil and criminal affairs of major religious systems;

-        community-made or unofficial laws, created to address issues that state law is unable or unwilling to resolve (e.g., such as Rio de Janeiro’s Pasargada);

-        international legal phenomena that regulate relationships between states and other internationally recognized actors;

-        supra-national legal phenomena, namely arrangements in which states delegate part of their sovereignty or functions to non-state institutions, such as the European Union and regional human rights regimes like the Inter-American System;

-        transnational legal phenomena, private- and public-private complexes of norms that attempt to regulate issues beyond and across state borders, such as lex mercatoria, lex sportiva, and, according to some, multinational enterprises; and,

-        interesting but vague claims concerning the existence of some putative global, world, or cosmopolitan legal phenomenanamely, forms of legal regulation with planetary influence, outside of the control of the nation-state or any other authority, such as global administrative law or a putative global legal system. [For this taxonomy, see].

The exclusion of non-state legal phenomena is problematic because these orders guide the life of millions of people on issues of moral, social, and political importance, outside the control of individual nation-states. As Jeremy Waldron reminds us, non-state legal standards govern a diversity of issues that “sustain our life together” ranging from “urgent” topics (e.g., human rights, crimes against humanity, migration, war and peace, trade, and environmental degradation) to seemingly “mundane” and philosophically “unexciting” subjects (e.g., banking, telecommunications, cross-border taxation, investments, and sanitary and phytosanitary measures) [Jeremy Waldron, Cosmopolitan Norms, in Another Cosmopolitanism , 83–4. (Seyla Benhabib & Robert Post eds., 2008) I have altered Waldron’s examples.] Moreover, non-state norms are often the relevant regulations in situations where states are weak, frail or unable to respond to needs of their subjects. In some cases, state norms may have little or no influence while non-state norms guide a community’s life (e.g., customary legal orders in some countries) or are those that the community identifies with (e.g., many indigenous communities prefer their norms over state law). Meanwhile, in other cases, non-state laws protect individuals’ rights from interference from state agents or when domestic law is unable or unwilling to do so (e.g., international systems of human rights or international criminal law). Waldron has suggested that mainstream theorists’ failure to engage with non-state normative phenomena is “nothing short of scandalous,” particularly “when it is evident that they might have a substantial contribution to make.”[Waldron makes this point in the context of international legal theory, but his point also applies to all forms of non-state law. Jeremy Waldron, Hart and the Principles of Legality, in The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy 67–84, 68–9 (Matthew H. Kramer, Claire Grant, & Ben Colburn eds., 2008).]

 In response to this deficit, my research attempts to develop a general theory of state and non-state legal phenomena. This theoretical framework attempts to formulate and begin to resolve vexing questions concerning the nature and legal character of non-state legal phenomena. It also aims to establish a firmer ground for doctrinal, politico-moral, and empirical inquiries about state and non-state law, and set the scene for more specific explanatory projects of particular jurisprudence. My argument liberally draws on methodological and substantive insights from the most important analytical theories of law of the twentieth century, particularly HLA Hart’s influential theory of state law.[Hart, supra note 1; H. L. A. Hart, Essays in Jurisprudence and Philosophy (1983); H. L. A. Hart, Commands and Authoritative Legal Reasons, in Essays on Bentham: Jurisprudence and Political Theory 241–268 (1982). Other key sources include Hans Kelsen, The Concept of the Legal Order, 27 The American Journal of Jurisprudence 64–84 (1982); Raz, supra note 8; Raz, supra note 2; Joseph Raz, Why the State?, in In Pursuit of Pluralist Jurisprudence 136–162, 138–145 (Nicole Roughan & Andrew Halpin eds., 2017).] My use of these resources is primarily based on reasons of familiarity and consilience. I am not interested here on dwelling on exegetical disputes about the best interpretation of these ideas. Instead, I focus on isolating and explaining some of the theories’ central themes that apply to not only state legal systems but all forms of practice-based normative phenomena. While these tools were created for other purposes, we can adapt, refine, and calibrate them to explain much more than what their authors originally envisioned.

 On the methodological aspects, I develop what I shall call—using categories that I have developed to identify the main puzzles of transnational legal theory —a general, unified, and distinctivist theory of law [For these problems, see].. My account is general, as it is not limited to a specific form of legality, such as state law, transnational arbitration, or customary legal orders, but aims to explain all types of state and non-state legal phenomena. It is unified insofar as it seeks to identify what HLA Hart called some “common features of form, structure, and content” amongst all the types of legality. This unified project contrasts with fragmentary approaches to general jurisprudence advocated by William Twining and Brian Tamanaha, which hold that there are no sensible generalities amongst the different forms of legality or that we are ill-equipped to grasp these generalities. Finally, my account is distinctivist, for it seeks to differentiate a sub-set of normative practices that are appropriately characterized as legal. This approach opposes non-distinctivist accounts that do not establish a sharp distinction between legal phenomena and non-legal social normative phenomena, so some form of legality or legal character should be recognized in the rules of associations, universities, clubs, dating, and schoolyard games, among others.

 On the substantive side of things, the bedrock of this account is the notions of norms, normative communities, and normative orders. Norms are the standards that guide the behaviour of a given community. The existence conditions of these norms refer to the behaviour and pro-attitudes of certain groups, or normative communities, as I shall call those groups, efficaciously guided by the same standards. In turn, normative orders are complexes of normatively interrelated rules that regulate a domain of action. My account makes a further distinction between two different kinds of orders that I will refer to as sets and systems. Whereas a set is a normative order that lacks standards regulating the identification, modification, and application of its rules, a system includes norms that govern these normative activities and empower agents to perform them. The trio of rules constitutive of a legal system is composed by the rules of recognition, change, and adjudication. Sets and systems are then distinct types of social normative objects that allow for different doctrinal and moral inquiries. In sets, doctrinal questions refer to the norms collectively accepted by the community, while in legal systems these issues refer to the norms that officials accept in common. Moreover, in sets we can only inquire about the legitimacy of the norms accepted by the community at large whereas systems give rise to further questions concerning the authority and legitimacy of the agents in charge of the creation and application of the collective rules.

 In my account, both state and non-state normative phenomena can be organized as sets or systems. Consequently, the systematic character of a given normative order is not the feature that determines its legal character. Instead, law and the purview of jurisprudence relate to some large-scale groups whose participants efficaciously employ intense forms of social pressure to secure conformity to norms that regulate pressing politico-moral issues. I will refer to these groups as political communities or polities. These communities have a prominent role in our theoretical and practical reasoning due to the pressing demands they impose on their subjects. In this picture, the state is one prominent form of a political community, but there is also a constellation of political communities at the non-domestic, international, supra-national, and potentially global levels. The repository of tools that I create are useful in identifying and providing a starting point for explaining forms of legal phenomena as the norms of state and stateless polities. They also provide an illuminating framework for further inquiries into legal phenomena. Lawyers often study the norms of political communities since they guide the resolution of legal disputes. Political philosophers are generally interested in issues concerning the authority and legitimacy of normative orders constituted by political communities for their prominent role in our practical life. My framework provides further guidance for these inquiries because doctrinal questions about the application of norms and interactions of normative orders, as well as politico-moral questions about legitimacy, justice, authority, and duties of obedience, are formulated differently in normative sets and systems.

Jurisprudence Beyond the State

Research Questions

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© 2021 - Jorge Luis Fabra Zamora - Last Updated August 10, 2021